When Boris Johnson rolled back the legal restrictions over summer as Britain emerged from the first lockdown, he was clear that enough was enough:
'Neither the police themselves, nor the public that they serve, want virtually every aspect of our behaviour to be the subject of the criminal law...After a long period of asking…the British public, to follow very strict and complex rules to bring coronavirus under control…we will be asking [people] to follow guidance on limiting their social contact, rather than forcing them to do so through legislation'.
Alas (as Boris Johnson keeps saying), trust in people doing the right thing voluntarily, rather than under legal obligation, turned out to be short-lived.
Pressure from enforcement agencies played a part. The rule of six? When it was introduced in September, the Home Office said it 'simplifies and strengthens the rules on social gatherings, making them easier to understand and easier for the police to enforce'. The 10pm hospitality sector legal curfew? 'To help police enforce this rule, I’m afraid that means, alas, closing and not just calling for last orders, because simplicity is paramount,' Boris Johnson told MPs.
Full legislative behavioural control has returned with Lockdown 3. The law is very complex – the mere 12 pages of regulations for the English Lockdown 1 have been superseded by 120 pages of the (thrice amended) Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. Intricacy more appropriate to the Dungeons and Dragons' rulebook has not stopped an accompanying barrage of guidance, ministerial statements, spokespersons’ clarifications, police pronouncements, public information posters and pop-ups.
In several respects, Lockdown 3 is less restrictive than Lockdown 1. The concept of linked households (support and childcare bubbles) makes welcome allowances for single people and grandparents. Exercise outdoors with a single member of another household is now permitted. There is a substantially greater list of exemptions to restrictions, including provision for communal worship and (very small) weddings.
However, the police attitude to enforcement is moving in the opposite direction. Until now, the four ‘E’s (Engage, Explain, Encourage, Enforce) made it clear on the tin that enforcement was a last resort, the fourth ‘E’.
But the Metropolitan Police have now stated that, although the 4 ‘E’s remain, enforcement by fixed penalty notices will be given higher priority for 'obvious, wilful and serious breaches'. In relation to parties, unlicensed music events or large illegal gatherings, this will mean penalties not just for the organisers, but for participants.
So far, perhaps, uncontroversial: attendees of block parties at the height of a pandemic will be well aware that they do so in the teeth of the stay-at-home obligation. In frustrating the sacrifices others have made, they can expect little sympathy.
The Met’s approach becomes more contentious, however, with the suggestion that non-mask wearers will be fined rather than reasoned with (those with disabilities are presumably going to have to debate the point in the street). Even more contentious is the assertion by the Met's deputy assistant commissioner Matt Twist that:
'After ten months of this pandemic the number of people who are genuinely not aware of the restrictions and the reasons they are in place is vanishingly small'.
This is an optimistic assessment of public understanding. The reality is closer to the suggestion doing the legal rounds that, like the Schleswig-Holstein business, only one person outside of the government legal service really understands all of the English regulations (the indefatigable Adam Wagner, London barrister, blogger, and de-facto public service).
The circumstances in which a person may leave their Tier 4 home to access childcare services, for example, has been subject to wholesale amendment three times in less than three weeks. Sparing readers the tedious technical ebbs and flows, the current position reserves the use of a particular species of childcare to parents who are 'critical workers', but only where 'reasonably necessary' to enable them 'to work or search for work, undertake training or education, or to attend a medical appointment or address a medical need'.
Parking the checklist-style complexity, it is difficult understand the rhyme or reason for this sort of cheese-paring. Why is it reasonable for a critical worker to put their child in childcare in order to attend a job interview, but not to attend a funeral?
Matters are made worse by guidance which overstates the law. The latest lockdown guidance resurrects previously challenged advice that exercise 'should be limited to once per day'. The word 'should' (not 'must') indicates to lawyers that this is non-legally binding advice. Non-lawyers, such as the ambulant constable or PCSO in your local park, may not draw such nice distinctions. The Met’s ominous suggestion that Londoners can 'expect officers to be more inquisitive as to why they see them out and about' raises the spectre of al fresco debates on restrictions and exceptions. There is plenty to debate: the regulations now set out 16 non-exhaustive categories of circumstances deemed to be a reasonable excuse to leave the home – with an overlay of non-enforceable guidance to further confuse what is already unclear. Derbyshire Constabulary, in particular, have once more come under the spotlight for what appears to be enforcement of guidance (exercise locally) rather than the law.
The gilding of the law with guidance remains a continuing mystery. If you want exercise to be limited to once per day or to be taken locally, why not legislate for that? Why devalue the legislative currency, already under pressure because of the sheer volume of regulatory output? Press reports suggested that the government did consider travel restrictions, and even a night-time curfew, but was not prepared to go that far.
Further confusion arises from post-legislative departmental ‘clarification’. Lockdown 3 saw the removal of the express ‘recreation’ exemption from the stay-at-home rule: within two days, representations from angling and shooting organisations had caused government officials to ‘acknowledge’ that fishing and shooting constitute ‘exercise’, and thus within a permitted exception.
Whatever the merits (or otherwise) of leaving the home to fish or shoot during the current crisis, there are wider criticisms that can be made of this approach. The construction of law is a matter for the courts, not lobbied officials. And the governmental seal of approval on what might be thought to be some pretty bold statutory interpretation further fuels suggestions that it is one rule for powerful interests and another for everyone else: see Barnard Castle and grouse moors of past lockdowns.
Why does this matter? Because the cost of lockdown will be squandered unless it works. The great unanswered question is this: is the current combination of laws, guidance and enforcement policies the best mechanism to achieve the minimum in social mixing and concomitant reduction in transmission of the virus? I'm not convinced.
No-one would envy government the task of coming up with the right mixture of rules and imploring people to use their common sense. But constant tweaking of the criminal law to micromanage ways in which people might need to venture out of the front door and interact has produced a mush of overwhelming complexity. This is a gift to both the loophole spotter and the overzealous enforcer. It undermines enforcement against the irresponsible, who can – and do – use complexity of the law as justification for not understanding it. The resurgence of arbitrary lines of fine-tuning also undermines a message that would be more effective if put simply.
So while Boris's broadcast message to 'stay at home' was straightforward, the rules are anything but. There are too many regulations. They are too complicated. And government advice only adds to this confusion.